Lawyers’ Referendum Not Just About TWU – It’s About Our Commitment To The Rule Of Law

THIS POST HAS BEEN WRITTEN BY GUEST AUTHOR DEREK B.M. ROSS, CCCC DIRECTOR OF LEGAL AFFAIRS,

We don’t leave human rights to be determined by popular opinion or by a majority vote. We can’t have a tyranny of the majority. That’s why we need courts. That’s why we have a Constitution.

My lawyer colleagues will recognize these words, or a variation of them, from the earliest days of their legal education. They were drilled into those of us who walked the halls of Canada’s law schools. Fierce opposition to the “tyranny of the majority” was an axiomatic concept in our law classes. It was a noble concept shared by all Canadians – or so we were told – but we in the legal profession had an especially important role in protecting it, as the so-called Guardians of the Rule of Law. It was a romantic ideal, but one many cherished – including me.

Now I’m not so sure.

Don’t get me wrong. I still want to believe that our profession respects the rule of law, even though we might not personally agree with its application in every instance. I still want to believe that our profession plays an important – even an imperative – role in protecting the civil liberties of those who are disliked, unpopular, or disenfranchised.

But I’m beginning to question whether it truly does.

To put my comments in context, most people are by now aware of Trinity Western University (TWU) and the controversy surrounding its proposed new law school. The controversy is centred on its Community Covenant, which all students and staff are required to sign, in which they agree not to engage in sexual activity outside of marriage, defined as being exclusively between one man and one woman.

TWU’s opponents have asserted that this faith-based covenant is inherently discriminatory, so much so that anyone who ascribes to it must necessarily be deemed unfit to practice law. This bald assertion involves an unwarranted, illogical, and unfair conclusion but has apparently been accepted by the Law Societies of Nova Scotia and Ontario, which have since denied accreditation of TWU’s Law School (even though it had already been accredited by the Federation of Law Societies and the B.C. Ministry of Education as meeting all necessary academic requirements). These decisions were all the more extraordinary considering that human rights legislation and the Charter specifically protect TWU’s Community Covenant, as the Supreme Court of Canada clearly decided just 13 years ago in the context of accrediting TWU’s education program.

The Law Society of British Columbia (LSBC), upon reviewing TWU’s proposed law school program and its Community Covenant, initially respected that Supreme Court decision and concluded that, notwithstanding how its individual leaders personally felt about the Covenant, the LSBC’s ultimate responsibility was to uphold the rule of law. The LSBC determined that the law clearly provided space for TWU’s Law School and that its graduates should be permitted to practice law in British Columbia. This was the right decision, and one that restored confidence in the ideals of my early legal education. This confidence, however, was short-lived.

Almost immediately, a group of lawyers – who clearly did not share the LSBC’s sentiment – called for a Special General Meeting of all lawyers in the province to challenge its decision. The vote in that Special General Meeting, which was non-binding, was successful, with the vast majority of those who voted expressing disagreement with the LSBC’s decision. The LSBC then met again, and despite the fact that nothing had changed since its initial decision that the LSBC was required by law to accredit TWU, decided to place the issue of accreditation in the hands of its members to decide by popular vote – this time, a binding one.

One does not have to look very long or hard to discover that TWU’s views are not shared by everyone, and certainly not by the vast majority. But isn’t that precisely why we should be willing to protect their views and practices? Isn’t that exactly what we lawyers signed up for: advocating for fair treatment for all, even when we may not personally agree?

In the 13 years that have passed since the 2001 TWU decision, hundreds of teachers have graduated from TWU’s education program. To my knowledge, not a shred of evidence has been presented to suggest that these graduates have exhibited any discriminatory behaviours or attitudes. One wonders how many of those so vehemently opposed to TWU’s proposed law school have ever stepped foot on its campus, talked to any of its staff or students, or met one of its graduates. Perhaps if they did, they would come to view members of the TWU community as reasonable, fellow human beings of goodwill, who would richly contribute to our profession, rather than “the others” who are to be feared and ostracised.

I understand why one may disagree with TWU’s Community Covenant on a personal level. What I have difficulty understanding is why our liberal ideals of tolerating opposing views, accepting unpopular expressions and values, promoting religious diversity, and protecting minority rights, no longer seem to apply.

I have difficulty understanding how we can flatly ignore the rule of law and completely disregard Supreme Court precedent and human rights legislation directly on point – simply because we do not like or agree with them.

I especially have difficulty understanding how the LSBC – the very body charged with maintaining public confidence in the legal profession – can (rightly) conclude that the rule of law demands protection of TWU’s law school on the one hand, yet on the other hand can shirk its responsibility by deflecting a question of fundamental human rights to its members to be decided by popular vote.

Nevertheless, here we are, facing a referendum, and lawyers in British Columbia have a very important decision to make. Will Canada remain a place where a divergence of ideas and religious expression are tolerated? Will it remain a place where the rule of law is upheld?

Voting to accredit TWU’s law school in this referendum will send a vital message, but that message is not that the legal profession endorses TWU’s religious views and practices. The message, rather, is this: lawyers in Canada remain committed to opposing the tyranny of the majority and to upholding the rule of law.

Lawyers are not entitled to permit the public to be excluded from accessing education or employment. The board of twu is no more legally entitled to deny the public acess to what Is a public degree granting program then human rights lawyers are to defend the exclusion of the public to these degree provincially approved spaces which are limited and cannot be legislated to deny any citizen access based on their personal religious beliefs regarding their freedom of conscience and or their choice of following restrictions on their behaviour to defer to what is not protected under educational law, the restriction to any advancement of educational institution by church based governance. While Canadians are very generous, the suggestion that we would legislate our own lack of access to opportunities to be educated is a bit of a stretch regarding conclusions being drawn regarding public entitlement to deny us all our minority individual rights to not be used and abused by any private board who if sincere would not be claiming to religiously deny all canadians s. 15 equality rights. These practises are not minority rights under public interests and for lawyers to suggest that exclusion is protection is concerning. Perhaps the public should be more concerned about how the Christian lawyers are advocating for the public to be excluded to privilege others who have private ideas that their is something wrong with the public that they need to be protected from.

Surely, it is not a good sign that the LSBC should require TWU to win an internal popularity contest before it receives the justice of being itself, out of its closet. This course of action is not just shamelessly adolescent, it is judicially disgraceful.

Taken to the nth degree, any student who attends Christian schools in Canada shouldn’t be allowed to study in public universities; after all, these kids have all been trained by teachers who have agreed to a similar code of conduct. The attacks against TWU are ridiculous!

Thank you to everyone who has commented for taking the time to engage in this important issue.

Kathleen, I appreciate your opinion and would agree that the right to equality needs to be balanced with freedom of religion. One can not trump the other. However, the appropriate balance has already been struck by the Supreme Court of Canada, which concluded that there needs to be concrete evidence that the exercise of religious beliefs will lead to harmful conduct – the following is quoted directly from the Supreme Court’s 2001 decision in TWU v. BCCT (see http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1867/index.do)

“TWU’s Community Standards, which are limited to prescribing conduct of members while at TWU, are not sufficient to support the conclusion that the BCCT should anticipate intolerant behaviour in the public schools. Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected…Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation…”

“Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the school system.”

“Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society. ”

Personally, I don’t think that young adults should be required to sign anything declaring what their sexual activities will be when they are enrolled in a university, Christian or otherwise. That is between them and God. Additionally, signing a document does not ensure that such sexual activities will not happen.

Surely, Gwen, the point is not whether every Christian institution SHOULD do this, but rather to uphold the freedoms necessary (of religion, conscience,and association) that if they wish to organize themselves in such a manner, they still can. Insofar as the Church has always been public about its recommendations both for and against certain forms of sexual expression, it should be ABLE to continue to be public about it. Wouldn’t you agree?

A reflection on the BC Law Society’s vote to dis-accredit TWU’s law school:
The disciple of Christ is constantly challenged by a spreading “practical atheism”–an indifference to God’s loving plan which obscures the religious and moral sense of the human heart. Many either think and act as if God did not exist, or tend to “privatize” religious belief and practice, so that there exists a bias towards indifferentism and the elimination of any real reference to binding truths and moral values. When the basic principles which inspire and direct human behaviour are fragmentary, and even at times contradictory, society increasingly struggles to maintain harmony and a sense of its own destiny. In a desire to find some common ground on which to build its programs and policies, it tends to restrict the contribution of those whose moral conscience is formed by their religious beliefs. Pope John Paul II, Address to Bishops of New Jersey and Pennsylvania, November 11, 1993

I see somewhat of a parallel with the LSBC decision to hold a referendum of TWU to that of Jesus before Pilate where Pilate delegated the decision making of whether to crucify Jesus to the crowd despite the fact that he found Jesus innocent (Matthew 27:11-16):

20: “But the chief priests and the elders persuaded the crowd to ask for Barabbas and to have Jesus executed.”
21: “Which of the two do you want me to release to you?” asked the governor. ‘Barabbas’ they answered.”
22: “‘What shall I do, then, with Jesus who is called the Messiah?’ Pilate asked. They all answered, ‘Crucify him!'”
23: “‘Why? What crime has he committed?’ asked Pilate. But they shouted all the louder, ‘Crucify him!'”
24: “When Pilate saw that he was getting nowhere, but that instead an uproar was starting, he took water and washed his hands in front of the crowd. ‘I am innocent of this man’s blood’ he said. ‘It is your responsibility!'”

The LSBC decision seems so outrageous that it defies the most fundamental aspects of natural justice: the right of notice, the right to be heard. Let’s not even mention the right to a fair and impartial tribunal or legitimate expectation, or even freedom of religion for a moment. Essentially, lawyers up and down BC can click “yes” or “no” without even having a single clue what TWU is, TWU now doesn’t even have a right to be heard.

Ms. Maloney: I think you raised an important concern, and I largely agree with Derek’s response. In addition, I would like to invite you to think about this. TWU went through the process of accreditation and approval with both the Federation of Law Societies of Canada and the provincial regulatory body for granting degrees (BC Minister of Advanced Education). Both have approved TWU. In the case of a secular university (i.e. Thompson Rivers University and Lakehead University), that would be the end of the question. But for TWU’s religious belief, none of any of the further steps would have happened, a fact clearly acknowledged by the Nova Scotia Barristers’ Society which conditionally approved TWU had it removed the relevant section on its Community Covenant. What TWU has done was lawful, please refer to my letter http://www.lawsociety.nt.ca/data/public/other/twu/non-member-edward-choi.pdf (page 5 under “Is it lawful for Trinity Western University to discriminate, and does it in fact discriminate?”) where I explained why. TWU is a private institution and many students attend the university because they want an alternative to the secular perspective. Disallowing the Community Covenant would essentially disallow that from taking place, and thus essentially excluding Christians who want to study the law in a Christian environment from doing so. TWU would have been just one of 17 English speaking Canadian common-law schools in the country, there are 16 others. Allowing TWU to operate would be the best balance where those who wish to study and live in a Christian community may do so (which includes the LGBT community, should they wish to live and study in the TWU community), and those who wish to live and study in a secular community may do so as well (at the other law schools).